1. When either a motion in limine or a motion to suppress is denied, the moving party must
object to the evidence at trial to preserve the issue on appeal.

2. The failure to understand the warnings required by K.S.A. 1997 Supp. 8-1001 does not
require suppression of evidence and does not render the results of any tests inadmissible.

3. K.S.A. 75-4351 does not require the appointment of a qualified interpreter to inform a
deaf driver, believed to have driven a motor vehicle while intoxicated, of the
consequences of a refusal to take a breathalyzer test as set forth in K.S.A. 1997 Supp. 8-1001
because the driver's participation in a breathalyzer test is not equivalent to an
interrogation or criminal proceeding within the meaning of K.S.A. 75-4351.

4. Communicative testimony is protected by the privileges provided in the Fifth
Amendment to the United States Constitution; real or physical evidence is not protected.

5. The legislature has expressly found that for breath test results to be reliable, the testing
equipment, the testing procedures, and the operator of the equipment must all be certified.

6. When the sufficiency of the evidence is challenged, the standard of review is whether,
after review of all the evidence, viewed in the light most favorable to the prosecution, the
appellate court is convinced that a rational factfinder could have found the defendant
guilty beyond a reasonable doubt.

Thomas R. Fields, of Kansas City, argued the cause and was on the brief for
appellant.

Delia M. York, assistant district attorney, argued the cause, and Nick
A. Tomasic, district attorney,
and Carla J. Stovall, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

ABBOTT, J.: This is a direct appeal by the defendant, Gary A. Bishop, from his
convictions for driving under the influence of alcohol (K.S.A. 1997 Supp. 8-1567) and
failure to maintain a single lane of traffic (K.S.A. 8-1522).

Bishop is a deaf mute who communicates through American Sign Language. At
11:36 p.m. on August 9, 1996, Trooper Steven Zeller observed Bishop's car weave
drastically within its lane of traffic and leave its lane of traffic at least once. Bishop was
accompanied by two children.

After stopping Bishop, the trooper realized that Bishop was deaf and could not
verbally communicate with him. The trooper detected a strong odor of alcohol
emanating from Bishop. Bishop's eyes were bloodshot. The trooper indicated that he
wanted Bishop to get out of his car and walk to the rear of his vehicle. Bishop
understood this request and followed it. As Bishop walked to the rear of his vehicle, he
stumbled.

Because of the communication barrier, the trooper did not ask Bishop to perform
any field sobriety tests. Instead, the trooper arrested Bishop for driving under the
influence of alcohol and failure to maintain a single lane. At no time did the trooper
ever attempt to obtain a sign language interpreter at the scene for Bishop. At some
point, Bishop's car was searched and a nearly empty open quart bottle of beer was
found in the car.

At the county jail, the trooper provided Bishop with a written copy of the implied
consent advisory. Despite knowledge that Bishop was deaf, the trooper also read the
implied consent advisory out loud to Bishop. At 12:36 a.m. on August 10, 1996, Bishop
submitted to a breath test on the Intoxilyzer 5000. The result of the breath test was a
reading of .149.

Bishop was charged with driving under the influence of alcohol and improper
driving on a laned road. Bishop requested and was granted a jury trial. The jury
returned a verdict of guilty. Bishop was sentenced on July 23, 1997, to 12 months in
the county jail and probation for 12 months. County jail time imposed as a condition of
Bishop's probation was 10 days. Bishop posted an appeal bond and timely filed a
notice of appeal with the Court of Appeals on July 23, 1997. The case was transferred
to this court pursuant to K.S.A. 20-3018(c).

I. EVIDENCE REGARDING ARREST

Prior to trial, the defense counsel filed a motion to suppress the evidence
regarding the arrest, which was denied. At the beginning of the trial, the defense
counsel renewed the motion to suppress the evidence regarding the arrest, but it was
again denied. At trial, the State introduced evidence regarding the arrest, and the
defense counsel specifically objected to this evidence, claiming that the State had not
established probable cause to arrest Bishop. At this point, the trial court informed the
defense counsel that if he challenged probable cause for the arrest, then the
preliminary breath test, which the arresting officer conducted on Bishop, would become
admissible and the State would be allowed to introduce it into evidence. The trial court
asked the defense counsel if that is what he wanted to do. After thinking it over, the
defense counsel stated, "I'll go ahead and withdraw my objection." On appeal, the
defense counsel claims that the trial court erred by admitting into trial the evidence
regarding Bishop's arrest because there was no probable cause to warrant the arrest.

When either a motion in limine or a motion to suppress is denied, the moving
party must object to the evidence at trial to preserve the issue on appeal. State v.
Milo,
249 Kan. 15, 18, 815 P.2d 519 (1991). In this issue, the defense counsel appeals the
trial court's denial of its motion to suppress the evidence regarding Bishop's arrest,
claiming that there was no probable cause for such arrest. When the evidence
regarding Bishop's arrest was presented at trial, the defense counsel specifically
objected to the evidence, claiming that there was no probable cause for the arrest, in
order to preserve the issue for appeal. However, the defense counsel immediately
withdrew this objection.

The defense counsel withdrew this objection for strategic reasons, and he
cannot now complain of the resulting consequences. Since the defense counsel did not
specifically object to the evidence admitted at trial regarding Bishop's arrest, he cannot
now challenge the trial court's denial of the motion to suppress the evidence regarding
Bishop's arrest. As such, the defense counsel's argument--that the trial court
improperly admitted into trial the evidence regarding Bishop's arrest because there was
no probable cause for the arrest--fails.

II. BREATH TEST

The defense counsel claims that the evidence regarding the breath test was
improperly admitted into trial because oral notice of the implied consent advisory had
not been properly provided to Bishop, as required by K.S.A. 1997 Supp. 8-1001;
because an interpreter had not been properly provided to Bishop, as required by K.S.A.
75-4351; and because there had not been a proper evidentiary foundation laid for the
test. The defense counsel objected to the evidence regarding the breath test at trial,
based on each of these grounds. All of these objections were overruled by the trial
court. On appeal, Bishop adds a fourth challenge to the admission of evidence at trial
regarding the breath test--Bishop claims that the proper protocol required in
administering the breath test was not followed by the officers who conducted the test.

A. K.S.A. 1997 Supp. 8-1001

K.S.A. 1997 Supp. 8-1001 provides that before a breath test is administered, the
person being requested to submit to the test must be given oral and written notice of
the statutory language set forth in 8-1001(f)(l). Subsection (3) also provides: "It shall
not be a defense that the person did not understand the written or oral notice required
by this section."

Under this statute, before a breath test is administered, oral and written notice
shall be given to the accused. K.S.A. 1997 Supp. 8-1001(f); see Meigs v.
Kansas Dept.
of Revenue, 251 Kan. 677, Syl. ¶ 1, 840 P.2d 448 (1992); State v. Luft,
248 Kan. 911,
912-13, 811 P.2d 873 (1991) (statutory provisions, which require notice of certain rights
be given to a person before a breath test is administered, are mandatory, not merely
directory; failure to provide such notice requires suppression of the test results). The
defense counsel concedes that the trooper tried to comply with 8-1001 in administering
the breath test by giving Bishop a written copy of the notice required and by reading the
notice to Bishop out loud before the test was conducted. Even though the trooper knew
that Bishop could not hear the oral notice required by 8-1001, the trooper subjectively
believed that Bishop understood his rights before he consented to the breath test. The
defense counsel claims that the trooper could not and did not provide Bishop with oral
notice of his rights, since he was deaf, and that this violated the mandatory notice
requirements in 8-1001.

In Kim v. Kansas Dept. of Revenue, 22 Kan. App. 2d 319, 916 P.2d 47,
rev.
denied 260 Kan. 994 (1996), the defendant's driver's license was suspended for 1 year
by the Kansas Department of Revenue (KDR), pursuant to 8-1001, for his refusal to
submit to a blood alcohol test. The defendant was a Korean immigrant, and he claimed
to have a problem understanding English, including the oral notice which was provided
before the test was conducted. The defendant asked the trial court to review the KDR's
decision, but the trial court granted summary judgment in favor of the KDR. The
defendant appealed to the Court of Appeals.

On appeal, the defendant argued that he did not understand the officer who read
him the implied consent advisory, which informed the defendant that the refusal to take
an alcohol test could result in suspension of his driver's license for at least 1 year. See
K.S.A. 1997 Supp. 8-1001(f)(1)(F). According to the defendant, his lack of
understanding in regards to the oral notice and the officer's failure to give such notice in
Korean amounted to a failure to provide him with the oral notice required by 8-1001.
The Court of Appeals rejected the defendant's argument and upheld the KDR's license
suspension. 22 Kan. App. 2d at 322. In so holding, the Court of Appeals stated:

"Our research has found no Kansas cases addressing a plaintiff's failure to understand the
required notices because of a language barrier. Nevertheless, KDR cites to several cases from
other
jurisdictions which are persuasive. See State v. Webb, 212 Ga. App. 872, 443
S.E.2d 630 (1994)
(hearing- and speech--impaired defendant); State v. Tosar, 180 Ga. App. 885, 350
S.E.2d 811 (1986)
(Spanish-speaking defendant); Warner v. Commissioner of Public Safety, 498
N.W.2d 285 (Minn. App.
1993) (deaf plaintiff); Yokoyama v. Commissioner of Public Safety, 356 N.W.2d
830 (Minn. App. 1984)
(Japanese-speaking plaintiff); Com. v. Mordan, 419 Pa. Super. 214, 615 A.2d 102
(1992), aff'd 534 Pa.
390, 633 A.2d 588 (1993) (deaf-mute defendant). In those cases, each court held that the failure
to
understand the warnings is not a defense and does not render the results of any tests inadmissible.
Conversely, Kim cites to no authority which has held that a defendant must
understand the warnings
given.

"Furthermore, K.S.A. 1995 Supp. 8-1001(f)(3) states that '[i]t shall not be a defense that
the
person did not understand the written or oral notice required by this section.' See
Buchanan v. Kansas
Dept. of Revenue, 14 Kan. App. 2d 169, 171, 788 P.2d 285 (1989)." 22 Kan. App. 2d at
322-23.

Based on the Kim case, we hold that the officer properly provided Bishop
with
the oral and written notice required by 8-1001(f), regardless of whether Bishop
understood the notice or not. K.S.A. 1997 Supp. 8-1001(f)(3). This issue fails.

B. K.S.A. 75-4351

K.S.A. 75-4351 provides, in pertinent part:

"A qualified interpreter shall be appointed . . . for persons . . . who [are] deaf.
. . . (e) prior to any
attempt to interrogate or take a statement from [persons] who [are] arrested for an
alleged violation of
criminal law of the state or any city ordinance."

At the time Bishop's breath test was administered, he had been arrested for an
alleged violation of criminal law of the State. According to Bishop, the breath test
amounted to an interrogation. Since a sign language interpreter was not provided for
him during such interrogation, Bishop claims that the breath test/interrogation violated
K.S.A. 75-4351 and should have been suppressed. In arguing that the breath test
amounted to an "interrogation," the defense counsel points to the following facts: The
trooper stopped Bishop's car, arrested him, and handcuffed him. The trooper
transported Bishop to the county jail and elicited information from him through the use
of a breath test. Since Bishop was in custody (i.e., he was not free to leave), and
information (his blood-alcohol concentration) was being requested from him, the
defense counsel asserts that Bishop was being "interrogated" during the breath test.
Thus, the defense counsel claims that a qualified sign language interpreter should have
been appointed for Bishop prior to the breath test/interrogation, in order to interpret the
implied consent advisory for Bishop, pursuant to K.S.A. 75-4351.

In response, the State argues that there is no evidence in this case that Bishop
was being interrogated or even that a statement was being requested from him during
the administration of the breath test. As such, the State asserts that K.S.A. 75-4351 did
not apply to Bishop's breath test situation and did not require an appointment of an
interpreter. According to the State, the trooper properly provided written and oral notice
of the implied consent advisory to Bishop as required by 8-1001(f). Thus, the State
argues that the breath test and its result were properly admitted into evidence at trial.

This issue revolves around the definition of interrogation. The Court of Appeals
addressed the definition of an interrogation and whether a breath test fell into such
definition in State v. Leroy, 15 Kan. App. 2d 68, 803 P.2d 577 (1990).

In the Leroy case, the defendant was arrested for DUI and requested an
attorney. The law enforcement officer then asked the defendant to take a breath test.
The defendant requested his attorney again, and the officer told him that he had no
right to an attorney prior to taking the test. The defendant refused the breath test. At
trial, the court suppressed the evidence regarding the defendant's refusal to submit to a
breath test because he had not been provided an attorney as he had requested.

Upon the State's appeal, the Court of Appeals stated:

"Communicative testimony is protected by the privileges provided in the Fifth Amendment;
real or physical
evidence is not protected. Schmerber v. California, 384 U.S. 757, 764, 16 L. Ed. 2d
908, 86 S. Ct. 1826
(1966). In distinguishing between communicative testimony and real or physical evidence, the
court in
Schmerber held that the taking of blood samples for the purpose of determining
intoxication was not
communicative testimony. 384 U.S. at 765.

"Based on Miranda and its progeny, it is clear that [the officer's] request that
defendant submit to a
breath test did not qualify as custodial interrogation. Because the taking of physical evidence to
determine
intoxication does not classify as custodial interrogation, defendant's Fifth Amendment privileges
were not
invoked and he had no right to an attorney. Thus, his refusal to submit to the requested test was
properly
admitted." 15 Kan. App. 2d at 71-72.

Based on the Leroy case, the request for a defendant to take a breath test or
an
actual breath test does not amount to an interrogation.

Further, in Com. v. Mordan, 419 Pa. Super. 214, 615 A.2d 102 (1992),
aff'd 534
Pa. 390 (1993), the Pennsylvania Superior Court held that a deaf mute motorist is not
entitled to a sign language interpreter prior to submission to a breathalyzer test so that
the defendant can make an informed choice as to whether to take the test and that the
breathalyzer results should not be suppressed because the services of an interpreter
were not provided before the motorist submitted to the test.

Mordan, after his arrest, was informed both orally and in writing of the
information he was statutorily entitled to be informed of. The trial court specifically
found Mordan could not read lips and could not read well enough to understand that he
had a right to refuse the test.

Pennsylvania has a statute similar to our interpreter statute. Pennsylvania held
that participation in a breathalyzer test is not the equivalent of an interrogation, nor is it
a criminal proceeding. The Pennsylvania court stated:

"The driver's license suspension proceeding by the Department of Transportation for a
refusal to take a
breathalyzer test is an independent civil proceeding separate and distinct from any criminal
charges
brought against a motorist. [Citation omitted.] Although the results of the breathalyzer test may
be used in
a criminal proceeding against appellant, the breathalyzer, itself, is not a criminal proceeding.
Since a
breathalyzer test is not considered an interrogation or a criminal proceeding within the meaning
of 42
Pa.C.S.A. § 8701, we cannot hold that deaf persons have a constitutionally protected
liberty interest to an
interpreter before exercising a refusal to submit to a breathalyzer test." 419 Pa. Super. at 222.

We hold that K.S.A. 75-4351 does not require the appointment of a qualified
interpreter to inform a deaf driver, believed to have driven a motor vehicle while
intoxicated, of the consequences of a refusal to take a breathalyzer test as set forth in
8-1001 because the driver's participation in a breathalyzer test is not equivalent to an
"interrogation" or criminal proceeding within the meaning of K.S.A. 75-4351.

To create an evidentiary foundation for a breath test, the State must introduce
evidence into trial that the testing equipment was certified by the Kansas Department of
Health and Environment (KDHE), that the testing procedures were used in accordance
with the manufacturer's operational manual and the requirements set out by the KDHE,
and that the person who operated the testing equipment was certified by the KDHE to
operate such equipment. K.S.A. 1997 Supp. 8-1002(a)(3)(A)-(C); see State v.
Lieurance, 14 Kan. App. 2d 87, 91, 782 P.2d 1246 (1989), rev. denied 246
Kan. 769
(1990). ("[T]o introduce the results of a breath test, the prosecution must lay a
foundation showing that the testing machine was operated according to the
manufacturer's operational manual and any regulations set forth by the Department of
Health and Environment."); State v. Rohr, 19 Kan. App. 2d 869, 870, 878 P.2d 221
(1994) ("'[T]he legislature has expressly found that, for breath test results to be reliable,
the testing equipment, the testing procedures, and the operator of the equipment must
all be certified.'"); K.A.R. 28-32-1.

In this case, the State introduced actual documents, indicating certification of the
test equipment and the test procedures, into evidence at trial. For instance, the State
discussed and introduced into evidence Exhibit 5, an original document indicating that
the KDHE had certified the specific breath test machine used for Bishop's test. The
State should have made it more clear on the record what this document was and that it
was an original document. However, the fact that it was an original equipment
certification document can be determined from the record and, thus, it was properly
admitted into evidence to lay a foundation for the breath test. If in fact Exhibit 5 was not
an original document certifying the Intoxilyzer 5000 machine used in Bishop's breath
test, this does not create reversible error. It is the defendant's responsibility to show
error based on the record on appeal. The record does not include Exhibit 5, and the
defendant did not ask that the exhibit be added to the record.

Further, in an attempt to prove that the testing procedures were certified by the
KDHE, the State also discussed and introduced into evidence Exhibits 2, 3, and 4.
Exhibit 4 was a copy of the certified monthly standard report for the breath test machine
used for Bishop's test. The original of this document was sent to the KDHE. Exhibit 3
was a copy of a record indicating that the solution used in calibrating Bishop's breath
test machine was certified. Exhibit 2 was the original operator's weekly log record,
indicating how many tests had been run on the machine so the operator would know
when the calibration solution needed to be changed (after 14 tests).

Finally, the trooper who administered the breath test to Bishop testified that he
was certified to perform the test at the time it was conducted. The trooper was
testifying as to his own personal knowledge that he was certified by KDHE to perform
the breath test on Bishop. This testimony amounted to substantial competent evidence
which the trial court could use to conclude that the trooper was certified to conduct the
test. Thus, this evidence, as a whole, created a proper evidentiary foundation for the
breath test so that the breath test results were properly entered into evidence.

However, Bishop points out that some of the documents entered into evidence to
prove that the test equipment and testing procedures were certified were not original
certification documents. Since the documents were not originals, Bishop contends that
the required certification was not proven and that a foundation for the breath test and its
result was not properly laid. Bishop is incorrect.

"Without question, the better practice is for the State to produce the original
documents of certification for admission into evidence." 19 Kan. App. 2d at 871.
However, 8-1002(b) specifically allows copies of the certification documents to be
entered into evidence to prove that the appropriate certification for the test equipment
and procedures existed. ("The signed certification or a copy or photostatic
reproduction
thereof shall be admissible in evidence in all proceedings brought pursuant to this act. .
. ." K.S.A. 1997 Supp. 8-1002[b].)

It is true that using copies of documents can sometimes violate the hearsay rule
and the best evidence rule. However, both of these rules contain exceptions which
apply here and allow copies of documents to be entered into evidence. The best
evidence rule allows copies of documents to be introduced into evidence if the trial
judge finds the writing is an official record. K.S.A. 60-467(a)(2)(E). All of the copies
which were introduced into evidence in this trial were copies of official certification
documents that had been sent to the KDHE.

Further, the hearsay rule allows copies of documents to be admitted into
evidence if the document purports to be a copy of an official record and it has been
authenticated to prove the content of the record. K.S.A. 60-460(o). All of the copies of
documents that were entered into evidence at trial were copies of official records--official
certification records sent to the KDHE. A copy of an official record is
authenticated if evidence has been introduced sufficient to warrant a finding that the
copy is a correct duplicate of an official record. K.S.A. 60-465(2). The copied
documents at issue were discussed and explained by the current custodian of the
documents and the person who was the custodian of the documents at the time that
Bishop's test was administered. These witnesses testified that these copies of the
original certification records were true and accurate duplicates of the original records.

Thus, based on these exceptions to the best evidence rule and the hearsay rule,
the copies of the certification documents were properly entered into evidence. See
Lieurance, 14 Kan. App. 2d at 91 (citing K.S.A. 1988 Supp. 60-467[a][5]); 60-465.
Relying on the original documents (the original log book of calibrations and the test
machine's original certification document), the copied documents (a copy of the certified
monthly standard report for the breath test machine and a copy of the document
certifying the calibration solution), and the trooper's testimony that he was certified to
conduct breath tests at the time he administered Bishop's breath test, the State laid an
adequate foundation for admitting the breath test evidence into trial. The trial court did
not abuse its discretion in admitting the evidence regarding the breath test into trial.

Finally, Bishop objects to the results of the breath test (.149) being admitted into
evidence at trial because no witness laid an evidentiary foundation for test results by
testifying as to what the .149 test results meant. This issue fails for two reasons. First,
when the State introduced the results of the breath test, the defense counsel did not
specifically object to this evidence on the basis that no witness had testified regarding
what .149 meant. Instead, the defense counsel merely objected to the breath test and
its result being introduced into evidence because a proper foundation had not been laid
for the breath test. "An issue not presented to the trial court will not be considered for
the first time on appeal." State v. Alderson, 260 Kan. 445, Syl. ¶ 7, 922 P.2d
435
(1996); see also State v. Boyd, 257 Kan. 82, 89, 891 P.2d 358 (1995) (timely
objection
necessary to give trial court an opportunity to correct alleged errors). Since the defense
counsel did not make this objection at trial regarding the State's failure to explain the
.149 breath test result, he cannot now raise this issue on appeal. See Lieurance, 14
Kan. App. 2d at 93. ("Lieurance argues that the Intoxilyzer results, '.234' were not
explained to mean grams of alcohol per 210 liters of breath. Lieurance did not raise
this at trial, so it cannot be raised on appeal.")

Second, even if the defense had properly objected to this issue at trial and
properly raised it on appeal, this issue would fail. The trooper who conducted Bishop's
breath test was asked to explain the procedure he followed in conducting a breath best.
The trooper testified as follows:

"[I]n this instance I believe I showed him how to blow into the tube, and the machine will do
the rest. It will
give a sample which they have to blow long and hard enough for the Intoxilyzer to obtain a
sample of the
deep lung air, and it will stop and tell what the blood alcohol content is. It does it through
a display."

"Q [By prosecutor]: And does that come out as a printout piece of paper?

"A: Yes, it does.

"Q: And do you have that printout here today?

"Yes, I do.

. . . .

"Q: Now, I would ask you to go ahead and identify what I have marked there as State's
Exhibit
Number One.

"A: This is a printout form, evidence printout form, and it shows the observation time,
the
subject's name, the Intoxilyzer serial number, shows the air blank, the standard--extended
standard, and
shows the subject's test and another air blank.

. . . .

"Q: Trooper Zeller, then, what were the results of that test?

. . . .

"A: The subject's test result was .149."

Based on the trooper's testimony, the jury was aware that the .149 result from
Bishop's breath test was his blood alcohol concentration. Further, Jury Instruction No.
12 explained to the jury the elements necessary to convict Bishop of driving under the
influence. This instruction stated:

"The defendant is charged with the crime of operating or attempting to operate a vehicle
while
under the influence of alcohol. The defendant pleads not guilty.

"To establish this charge, each of the following claims must be proved:

1. That the defendant drove or attempted to drive a vehicle;

2. That the defendant, while driving or attempting to drive, was under the influence of
alcohol to a
degree that rendered him incapable of safely driving a vehicle; and

3. That this act occurred on or about the 9th day of August, 1996, in Wyandotte County,
Kansas.

"The defendant is charged in the alternative with operating a vehicle while having a
blood alcohol
concentration of .08 or more or operating a vehicle while under the influence of alcohol.
You are
instructed that the alternative charges constitute one crime.

"You should consider if the defendant is guilty of operating a vehicle while having a
blood alcohol
concentration of .08 or more and sign the verdict upon which you agree." (Emphasis
added.)

Based on this jury instruction, the jury was aware that if Bishop had a blood
alcohol concentration of .08 or more, then he was guilty of DUI. Relying on the
trooper's testimony and jury instruction No. 12, the jury had enough information to
figure out what Bishop's breath test result meant. The jury did not need a full medical
explanation of how blood alcohol concentration is determined or a full technical
explanation of exactly how the machine determines this content. This issue fails.

D. Protocol

As previously mentioned, prior to the trial, the defense counsel filed a motion in
limine asking the trial court to suppress the evidence regarding the breath test and its
result because the test was not conducted according to police protocol. The trial court
held a hearing on the motion on February 27, 1997, and denied it. At trial, when
evidence of the breath test and its results were introduced, the defense counsel
objected to the evidence because oral notice of the implied consent advisory was not
provided to Bishop, pursuant to 8-1001; because an interpreter was not provided,
pursuant to 75-4351; and because there was not a proper evidentiary foundation laid
for the test. All of these objections were overruled by the trial court. However, the
defense counsel did not object to the admission of evidence regarding the breath test
and its result on the ground that the proper protocol had not been followed in
conducting the test.

On appeal, the defense counsel claims that the trial court erred in denying the
motion in limine. According to the defense counsel, evidence of the breath test and its
result should have been excluded from trial because proper protocol in conducting the
test was not followed. The defense counsel asserts that the trooper did not observe
Bishop for 20 minutes or check into Bishop's mouth for foreign substances before the
breath test was conducted so as to ensure its validity. Due to this failure to follow
protocol, Bishop claims that an adequate evidentiary foundation was not laid for the
breath test and its result. Thus, Bishop asserts that the evidence regarding the breath
test result was improperly admitted into evidence.

"If a motion in limine is denied, the moving party must object to the evidence at
trial to preserve the issue on appeal." State v. Johnson, 255 Kan. 252, Syl. ¶
1, 874
P.2d 623 (1994). At trial in this case, the defense counsel did not object to the
evidence regarding the breath test and its result on the ground raised in the motion in
limine--that the trooper who conducted Bishop's breath test failed to follow the proper
test protocol. Thus, this issue was not preserved for appeal. This issue fails.

III. JURY INSTRUCTIONS

In its instructions to the jury, the trial court did not include any instructions
regarding the requirement of an interpreter at the time the breath test was conducted.
On appeal, the defense counsel claims that the trial court erred by not including 8-1001
and 75-4351, relating to the requirement of an interpreter and the admission of the
breath test results, as part of the instructions. According to the defense counsel, the
inclusion of these statutes would have aided the jury in viewing the facts in light of the
applicable law. To not belabor the point, the defense counsel simply points to his prior
arguments regarding these statutes in support of this issue.

As a matter of law, neither 8-1001 nor 75-4351 required the appointment of an
interpreter during Bishop's breath test or prevented the admission of the breath test and
its result into evidence at Bishop's trial. Thus, instructions on these statutes were not
necessary. This issue fails.

IV. SUFFICIENCY OF THE EVIDENCE

Bishop was convicted of one count of driving under the influence of alcohol and
one count of failure to maintain a single lane. The defense counsel argues that the
evidence was insufficient to sustain these convictions. Claiming that the breath test
and its result should not have been admitted into evidence, the defense counsel asserts
that the other evidence which was properly admitted was not sufficient to support these
convictions. According to the defense counsel, the State failed to prove beyond a
reasonable doubt that Bishop failed to maintain a single lane or was driving under the
influence of alcohol.

This issue fails. When the sufficiency of the evidence is challenged, the
standard of review is whether, after review of all the evidence, viewed in the light most
favorable to the prosecution, the appellate court is convinced that a rational factfinder
could have found the defendant guilty beyond a reasonable doubt. State v. Cellier,
263
Kan. 54, Syl. ¶ 7, 948 P.2d 616 (1997). Based on this standard of review, the evidence
presented in this case is sufficient for a reasonable factfinder to have found Bishop
guilty, beyond a reasonable doubt, of failure to maintain a single lane and driving under
the influence of alcohol.

V. SUMMARY

Bishop's arguments fail for an additional reason. The party urging error has a
duty to furnish a record demonstrating error. Here, Bishop has failed to include the
videotape showing the events leading up to the consent to the breath test, to include
the consent form itself, and to include a transcript of the motion to suppress. The trial
judge obviously found Bishop was informed of his rights in regard to the breath test.
Bishop chose not to include that part of the record that is vital to that determination.
There was some communication between Bishop and Trooper Zeller, as Bishop did
submit to the breath test and obeyed the orders he was given. In fact, the trooper
testified that he thought Bishop understood his rights in regard to the breath test.
Apparently, the trial judge was also under the impression that Bishop understood his
rights.

We are unwilling to say that the fact Bishop is a deaf mute, standing alone, is
sufficient to show Bishop was not properly informed. The issue before us must be
decided on a case-by-case basis. The videotape would show the communication
between Trooper Zeller and Bishop. The trial court observed that tape, plus the
consent form (which apparently contained written communication between Bishop and
the trooper) and heard the motion to suppress, which we do not have a transcript of.
Based on the record before us, we are unwilling to say the trial judge erred. Bishop has
not demonstrated reversible error.